IN THE FIELD By Michael Rubin
OSHA Enforcement Trends How contractors can survive new era of aggressive inspections
O
ver the past few years, OSHA has been getting more and more aggressive. Although recent “doomsday prophecies” have been circulating in the news, we have seen no signs of OSHA slowing down. In fact, we’ve seen first-hand examples of enforcement requiring employers to up their “OSHA game” considerably. And right away. This trend has resulted from several factors. First, in January 2023, OSHA issued a memorandum regarding “instance by instance” (“IBI”) violations. These violations are issued per employee or per instance. For example, rather than issuing a single violation for failing to train 10 employees, OSHA issues 10 separate violations – one for each employee who was not trained. OSHA previously limited IBI violations to
“willful” situations but has expanded the policy significantly to allow IBI violations any time OSHA concludes issuance would achieve a “deterrent goal.” Since this time, we have seen more IBI violations, which has significantly increased penalties and made cases more difficult to settle. Second, although some might deny this (even though they know it’s true), knowing the OSHA Area Director used to mean preferential treatment like getting better outcomes based solely on that relationship. Now, those relationships carry less, if any, weight. OSHA generally seems less interested in settling cases early, even if you and the Area Director are pals (or, more often, you think you are). More frequently we are seeing cases with strong defenses not getting any attention. When you can’t get anyone to listen, especially early in the case, expect to spend
Michael Rubin is a shareholder at Ogletree Deakins, one of the largest labor and employment law firms representing management. Michael focuses his practice on occupational safety and health law, advising and representing employers across various industries throughout the country during OSHA inspections, investigations, and enforcement actions. He also develops and audits safety programs and policies and counsels employers on related risk-management strategies.
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more time, more money defending an OSHA matter. In short, you have to work harder to truly convince OSHA of your position. Third, OSHA no longer “groups” violations the way it did previously. Of course, yes, sometimes OSHA does group violations, but we’ve seen much less of this. As a result, instead of receiving one item in a citation, with parts “a”, “b”, and “c” (with one penalty), now employers are receiving three separate violations – all with penalties. Once again, this reflects a common theme – that is, aggressive enforcement, full steam ahead. With these trends in mind, what can a contractor do to protect itself? For starters, contractors must (not should) know their rights during an OSHA inspection. This prevents an inspection from going sideways and the outcome from getting out of hand. Second, contractors must know what OSHA believes is important, if not required, and why. This is the only way to protect yourself – and, in turn, get the best outcomes. Some of the most important rights and considerations are addressed below.